The world is evolving at an ever-accelerating pace, and while jurisdictional boarders still adhere to their traditional spheres of influence, the increased global mobility of individuals combined with the borderless nature of capital and of property ownership means that transnational legal conflicts are becoming ever more common. One such example of this phenomenon, and the focus of the present article, is the growing frequency of cross-border successions faced by legal professionals, specifically those between England and Italy.
A small disclaimer must be made for the sake of clarity, as while England and Wales share a succession law, Scotland and Northern Ireland possess separate systems, which will not be explicitly analysed in the present article, as such and for the sake of objectivity, only England’s & Wales’ system will be taken into consideration and will be referred generally and reductively as “English Law”, and should be understood to also include Welsh law.
When examining succession matters between England and Italy, it is essential to recognise the deep-rooted divergences between their respective legal systems, which exist primarily as a matter of the very foundation in which they were structured. In this sense, while Italy possesses a civil law tradition, England has developed a common law framework. Such differences often give rise to conflicts in cross-border estates as specific legal concepts and mechanisms are not inherently translatable from one jurisdiction to the other. Furthermore, the matter at hand is particularly relevant due to the long-standing historic ties between the two nations and its citizens which have led to the de facto situation where many individuals hold assets in both jurisdictions, further complicating matters of inheritance and estate administration.
Further discrepancies arise from the fact that Italy adheres to EU Regulation No. 650/2012 (“Brussels IV”) which comprehensively harmonises jurisdiction, applicable law, and recognition/enforcement of succession instruments across the EU (excluded Ireland and Denmark), while England, even before Brexit never adopted this framework, and consequently, legal integration of succession matters is not as seamless between these jurisdictions as it within the EU.
Under Brussels IV, the applicable law to succession is determined by the last habitual residence of the deceased individual, as per its Art. 21, unless a different law i.e. the law of the deceased’s nationality, (“professio iuris“) was expressly and validly chosen by the deceased to regulate their estate, in conformity with Article 22 Brussels IV. The EU framework thus, unconcerned by the nature of the assets and adopting a primary defining criteria, promotes the unity of succession across its member states, following a unitary principle and allowing a single law to govern the entire estate of the individuals living under its sphere of influence.
English law on the other hand, adhere to a dual approach, the so called “scission principle”, whereby the law of domicile governs moveable property, while immovable property is governed by the law of its physical location (“lex situs”).
The concept of habitual residence, which is fundamental to understanding Brussesl IV, combines both objective and subjective elements in its recognition. As such, objectively, it requires from the individual not only a stable and continuous presence in a specific place, one that is not temporary or linked to circumstances such as holidays or medical stays, but also, subjectively, entails the genuine intention of the person to establish their life there, outside the country of their citizenship. Only when these two elements properly converge and are verified can a location be considered the habitual residence of any individual.
These divergences, as one can imagine, often lead to complex legal scenarios in successions involving assets in multiple jurisdictions, specifically when considering that the deceased individual might also have had possessions in third countries, which however, will not be explored in the present article. When proceeding with the analysis on the applicable law, when it is established that it is from a non-EU state (such as English or Scots law or any third country) there is also a question of renvoi, which is fundamentally the process of referral of case or dispute to the jurisdiction of another country. In these such cases, if the foreign law refers the matter back to the law of the location of the assets.
Brussels IV explicitly excludes renvoi, as article 34 provides that when applying a third country’s law, only that country’s substantive rules (but not its conflict rules) are used. In practice, if an Italian court must apply, say, English law, any English rule referring back to Italian law would be ignored under Brussels IV. (After Brexit, if Brussels IV does not apply at all, then Italian courts would resort to Italy’s own conflict rules, which similarly avoid renvoi in most cases).
Generally, when the situation arises where an English citizen has not made a formal and valid choice of law and was habitually resident in Italy at the time of death, as explored above, Italian succession law will govern the entire estate, including assets located in England. This can create operational challenges, particularly due to fundamental legal irreconcilability. One notable example of this scenario, is when we take into consideration England’s concept of joint tenancy, under which two individuals hold an undivided interest in the whole property, with an automatic right of survivorship, meaning that upon the death of one joint tenant, the property passes directly and automatically to the surviving co-owner, outside of any formal probate procedure. Italian law, on the other hand, does not recognise the institute of joint tenancy. Instead, co-ownership is limited to defined shares (comproprietà), and upon the death of a co-owner, that share is subject to succession proceedings and forced heirship rules, not transferring automatically.
Forced heirship rules represent another common point of frequent contention between the countries’ systems and exist mainly in countries with civil law traditions and impose that a given portion of the deceased person’s estate is not freely disposable of. In Italy specifically, such regime is known as legitimate succession (Cod. Civ. Artt. 536-564) and depending on the number and nature of the heirs, it imposes forced heirship rules and quotas (“quota di legittima”).
England contrarily, following the common law tradition is a “freedom of testamentary disposition” jurisdiction, meaning that the deceased person is granted broad discretion to dispose of their estate, with generally no statutory limitations and subject generally only to potential claims under the Inheritance (Provision for Family and Dependants) Act 1975. As such, this may cause conflicts between jurisdictions, wherein in England, a will which disposes of an Italian real property may be forced to adhere to Italian forced heirship rules even against the wishes of the deceased, unless a professio iuris is made in favour of English law as the law which governs the deceased state’s succession in Italy.
The formal validity of wills represents another area where English and Italian succession law diverge sharply, often creating practical difficulties in cross-border estates. The Italian legal system recognises several forms of wills, which range from more informal and simple process to a highly formalised rite. As one might expect, the simplified version, the holographic or handwritten will, is usually the more common approach, and it requires only to dated and signed by the testator, requiring neither witnesses nor a notary. However, when vying for increased legal security and a presumption of authenticity, Italy also allows the will to be drafted in the form of a public will, which is dictated to a notary in the presence of two witnesses. Italy also recognizes a third possibility: the secret will, which is delivered to a notary in a sealed form, and may represent an intermediate approach between the holographic and the public will.
England and Wales, by contrast, adopt a single formal model which establishes three main criteria for its validity: the will must be in writing, signed by the testator, and executed in the presence of two witnesses who must each sign in the testator’s presence. As a result, English law may not automatically recognise an Italian handwritten holographic will unless it also met English law’s express prerequisite of two witnesses. As such it must be noted that these structural differences mean that a will which was drafted following all the formalities and requirements of one jurisdiction may not meet the technical requirements in another jurisdiction. Such a situation may create a substantial risk of partial or total invalidity of a will where a cross-border estate and succession process is concerned. For this reason, an Italian testator vying for general international recognition of his will may opt instead for the public will.
It is important to remember that International private law offers legal remedies for such conflicts that may mitigate such situations. Under the 1961 Hague Convention (incorporated in the EU through Article 24 of Brussels IV) a will is internationally valid if it meets any one of several formal standards. The articleprovides that a will is formally valid if it complies with the law of the place of execution, or the law of the testator’s nationality or habitual residence (at the time of execution or death), or (for immovables) the law of the situs. In practice, this means that a English‐made will can be given effect in Italy if it was valid under English formalities or under Italian law.
Finally, special attention can be advisable for specific classes of assets, where further formalities may be applicable. In such cases a deeper analysis which goes beyond the considerations related to the mere succession conflicts explored above may be prudential. One such case is that which pertains to Italian real estate, wherein the transfer of ownership upon death must comply with Italian registration and transcription formalities to achieve the correct transfer of ownership of the asset. In practice, this means obtaining a notarial inheritance deed or court order and registering it in the Italian land registry. While a valid English will can govern the succession, the actual transfer of the property must still follow Italian notarial and procedural requirements, which differ from those in England.
Given the complexity of the various possibilities and laws applicable to transborder successions such as the case between Italian and English successions, it is therefore essential to conduct a primary analysis to:
- assess the habitual residence of the deceased and the location of their assets;
- evaluate the existence of an explicit professio iuris in favour of the national law (Italian or English);
- draft wills that comply with the formal requirements of both legal systems;
- seek assistance from professionals with expertise in comparative succession law.
Proper succession planning and executing help avoid disputes between heirs, delays in property registration, and uncertainty regarding applicable rules. In such scenarios it is highly advisable to have a coordinated approach between the two legal systems ensuring a measure of certainty in an already potentially difficult moment for most families and individuals.
